Symbols, motifs and ownership: marketing and copyright issues

The Powerhouse museum has a bit of material looking at the issue of indigenous design

Symbols, motifs and ownership: marketing and copyright issues

Exploitation of creative work can be a problem for any artist. For Aboriginal and Torres Strait Islanders the problem is often more complex as the symbols and motifs used in their designs also hold cultural significance for a particular group. Exploitation of the design impacts not only on the artist but also on the group.

A positive example of the use of copyright law by an Aboriginal and Torres Strait Islander would be the use of Jimmy Pike’s artwork by Rowe Fabrics, Sydney for an interior fabric. This was Pike’s first licensing agreement in home furnishings.

Jimmy Pike,

…entered into a series of business arrangements with Culley and Wroth of Desert Designs. These would protect the integrity of his art (and separate the paintings and the production/marketing of limited edition prints) but enable additional income to be derived from the licensing of his designs and the strategic development of the Desert Designs company. (O’Ferrall, 1995: 3)

Not all Aboriginal and Torres Strait Islander people have had such positive experiences.
In 1994

… a case of theft of Aboriginal imagery occurred when a businessman …had carpets made in Vietnam with images stolen from Aboriginal paintings, and falsely labelled them to give authenticity. The artists took him to court and won. He was ordered to pay compensation but went bankrupt.
(The Koori Mail, 1998: 15) this became known as The carpet case.

Another significant case involving the infringement of the copyright of an Aboriginal artist has been resolved. The case, brought by the Sydney-based artist Bronwyn Bancroft with the assistance of the Aboriginal Arts Management Association, was listed for hearing in the Federal Court on December 12, 1991.

The clothing manufacturer Dolina Fashion Group Pty Ltd supplied Grace Bros stores with an ‘exclusive’ dress design for a major promotion through its network. It was alleged that Dolina’s stylists had requested an Aboriginal look from the Japanese fabric maker Sastani to present as the front line of their fashion range.

The fabric maker supplied a print in three colour ways, which, it was alleged, was a direct copy of an original artwork by Bancroft, Eternal Eclipse (1998), which had been reproduced in Jennifer Isaac’s book Aboriginality: Contemporary Aboriginal Paintings and Prints.

The clothing manufacturer and retailers claimed that they were innocent of the infringement and the fault lay with the fabric maker who printed the design. The case raised a number of interesting issues in copyright, especially in relation to Aboriginal art.

Copyright law, in its present form, functions best to protect the individual artist from the unauthorised use of his or her work. For artists to have their work pirated represents a theft of their intellectual property and a distortion of the intent of the artwork. Although, in Bancroft’s case, it may be difficult to prove who was directly responsible for appropriating the image, the design used by Dolina is a copy of Bancroft’s painting. The artist has suffered the shock and embarrassment of seeing her original artwork trivialised. Bancroft also has an established reputation as a fashion designer of original garments, at a different level of the fashion market from Dolina’s styles for major retail outlets. (Cochrane Simons, 1991)

The Label of Authenticity
Bronwyn Bancroft’s case is one of the cases that motivated the development of the Label of Authenticity. The National Indigenous Arts Advocacy Association (NIAAA)

…through funding from the Australia Council and ATSIC, are in the process of developing a national system of labelling that will distinguish art and cultural products from the fake products. As a certified trade mark the Label of Authenticity will be attached to a product or used in relation to a service originating from an Aboriginal or Torres Strait Islander person. (NIAAA)

Why do we need a Label of Authenticity
For some time concern has been growing that Aboriginal and Torres Strait Islander designs and symbols have been incorrectly used, most often without permission. Examples include artwork, tourist souvenirs and carpets, to name a few.

The primary responsibilities of the NIAAA as the national peak Aboriginal and Torres Strait Islander arts and cultural service include the continued and increased recognition and protection of the rights of Aboriginal and Torres Strait Islander artists. NIAAA provides culturally appropriate advice, information, referrals and support services to indigenous artists and organisations. (NIAAA, 1999)

Label of Authenticity. Courtesy: National Indigenous Arts Advocacy Association (NIAAA)

NIAAA logo. Courtesy: National Indigenous Arts Advocacy Association (NIAAA)


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